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Lawmakers to revisit 9/11 law authorizing ever-expanding war

  • Author: Charlie Savage, The New York Times
  • Updated: October 28, 2017
  • Published October 28, 2017

WASHINGTON — A Navy SEAL, killed alongside civilians in a January raid on a village in Yemen. Another SEAL, killed while accompanying Somali forces on a May raid. And now four Army soldiers, dead in an ambush this month in Niger.

These U.S. combat deaths — along with those of about 10 service members killed this year in Afghanistan and Iraq — underscore how a law passed shortly after the Sept. 11, 2001, terrorist attacks has been stretched to permit open-ended warfare against Islamic militant groups scattered across the Muslim world.

The law, commonly called the AUMF, on its face provided congressional authorization to use military force only against nations, groups or individuals responsible for the attacks. But while the specific enemy lawmakers were thinking about in September 2001 was the original al-Qaida and its Taliban host in Afghanistan, three presidents of both parties have since invoked the 9/11 war authority to justify battle against Islamic militants in many other places.

On Monday, Defense Secretary Jim Mattis and Secretary of State Rex Tillerson will testify before the Senate Foreign Relations Committee as lawmakers renew a debate over whether they should update and replace that law, revitalizing Congress' constitutionally assigned role of making fundamental decisions about going to war.

But even as President Donald Trump's administration moves to ease some Obama-era constraints on counterterrorism operations, political obstacles to reaching a consensus on new parameters for a war authorization law look more daunting than ever.

Defense Secretary Jim Mattis, second from left, and Secretary of State Rex Tillerson on Capitol Hill in Washington, Aug. 2, 2017. (Al Drago/The New York Times file)

Previous efforts collapsed under disagreements between lawmakers opposed to restricting the executive branch's interpretation of its current wartime powers and those unwilling to vote for a new blank check for a forever war. Among the disputes: whether a replacement should have an expiration date, constrain the use of ground forces, limit the war's geographic scope and permit the government to start attacking other militant groups merely associated with the major enemies it would name.

Adding to the political headwinds, two of the Republican lawmakers most interested in drafting a new war authorization law are lame ducks and estranged from the White House: Sen. Bob Corker of Tennessee, who is chairman of the Foreign Relations Committee, and Sen. Jeff Flake of Arizona, who has proposed a new war authorization bill with Sen. Tim Kaine, D-Va. Both Republican senators, who have announced that they will not seek re-election, have publicly denounced Trump in recent weeks as dangerously unfit to be the commander in chief.

But as the 9/11 war enters its 17th year, questions about the scope and limits of presidential war-making powers are taking on new urgency.

Trump is giving the Pentagon and the CIA broader latitude to pursue counterterrorism drone strikes and commando raids away from traditional battlefields. Two government officials said Trump had recently signed his new rules for such kill-or-capture counterterrorism operations, without major changes to an interagency agreement first described last month by The New York Times.

Under the Obama-era rules, there was individualized high-level vetting of proposed strikes, and targets had to pose a specific threat, as individuals, to Americans. Under the new Trump rules, the administration will instead approve a "persistent campaign of direct action" for various countries where Islamic militants are operating, without higher-level review of particular strikes, and targets may include any suspected member of a group deemed covered by the 9/11 war authorization.

And while the Trump administration decided to keep an Obama-era requirement of "near certainty" that no civilians would be killed, it reduced the required level of confidence that the intended target was present in a strike zone from "near certainty" to "reasonable certainty," one official said — further lowering constraints on attacks.

Moreover, NBC News reported this past week that the Trump administration was exploring arming the surveillance drones that now fly over Niger and Mali in search of suspected Islamic militants. The new rules could also permit the Pentagon to carry out offensive ground combat operations in North and West Africa, escalating deployments that key lawmakers seem to have been only dimly aware of before the deaths of the four soldiers this month.

"I didn't know there was a thousand troops in Niger," Sen. Lindsey Graham, R-S.C., who is on the Senate Armed Services Committee, recently told NBC's "Meet the Press." Graham opposes rewriting the 9/11 war authorization law but wanted more information about what the government is doing with it, saying: "This is an endless war without boundaries, no limitation on time and geography. You got to tell us more."

The questions about Trump's interpretation of his war powers range beyond conventional counterterrorism operations.

For example, Trump has suggested that he may abandon diplomatic efforts to curb North Korea's testing of nuclear bombs and longer-range missiles and order an attack. But he and his administration have said nothing suggesting that they would seek prior authorization from Congress and the U.N. Security Council.

On April 6, Trump ordered airstrikes against Syrian government forces as punishment for using chemical weapons, without going to Congress or the U.N. for permission. His administration refused to answer questions about why it thought he had lawful authority to carry out such an act of war unilaterally, especially as a matter of international law, leaving it unclear whether it had first considered potential legal constraints.

A Freedom of Information Act lawsuit recently revealed that Trump's legal team did draft and internally circulate a seven-page, unsigned memo analyzing a legal basis for potential military action against Syria. While the memo is undated, Justice Department lawyers said it was probably produced on April 6, the day of the strikes.

But the administration is keeping the memo's contents secret, so it is not clear what, if anything, it says about international law. The U.N. Charter, a treaty ratified by the United States, forbids attacking another sovereign country without Security Council permission or a self-defense claim.

It is also not clear whether the memo's analysis of domestic law claimed constitutional power for Trump to lawfully attack Syria merely because he decided that it would be in the national interest — as a set of leaked administration talking points maintained — or whether it invoked the 9/11 war authorization law as purported congressional sanction.

But in June, after the U.S. military shot down a Syrian government fighter jet — prompting Russia to threaten to shoot down any U.S. aircraft that flew west of the Euphrates River — the chairman of the Joint Chiefs of Staff, Gen. Joseph F. Dunford Jr., asserted that the executive branch's legal authority to attack the Syrian jet came from the 9/11 war authorization law.

Dunford's rationale was that the U.S. presence in Syria stemmed from its fight against al-Qaida and the Islamic State under that law, and that the jet had been menacing a rebel militia the United States was supporting. Several lawmakers and witnesses at a Senate Foreign Relations Committee hearing in June on whether to replace the 9/11 war authorization law criticized his claim as stretching the 2001 law too far.

The existence of the April 6 memo came to light via a Freedom of Information Act lawsuit by Protect Democracy, a government watchdog group founded by former Obama administration lawyers. On Thursday, the group filed a new lawsuit for documents that could similarly reveal whether the Trump administration has developed any analysis about a legal basis for a potential pre-emptive attack on North Korea.

Protect Democracy's executive director, Ian Bassin, said the Senate should ask the top Trump administration witnesses Monday to explain their understanding of Trump's powers to unilaterally start or expand wars beyond those linked to the much-stretched 9/11 war authorization law.

"Senator Corker may be worried about the lack of adult day care in the White House, but the framers actually assigned those duties to Congress," Bassin said, invoking the chairman's rejoinder to Trump's insults on Twitter earlier this month. "With a commander in chief unilaterally launching missiles at Syria and threatening nuclear war against North Korea, Corker needs to focus on more than an Islamic State AUMF. He needs to put safety bumpers around the president."

Eric Schmitt and Julie Hirschfeld Davis contributed reporting.